This Judge Thinks That Smart Gadgets Don't Necessarily Need Patents

CHICAGO (Reuters) - The U.S. judge who tossed out one of
the biggest court cases in Apple Inc's smartphone technology battle is
questioning whether patents should cover software or most other
industries at all.

Richard Posner, a prolific jurist who sits on the 7th U.S.
Circuit Court of Appeals in Chicago, told Reuters this week that
the technology industry's high profits and volatility made patent
litigation attractive for companies looking to wound competitors.

"It's a constant struggle for survival," he said in his
courthouse chambers, which have a sparkling view of Monroe Harbor
on Lake Michigan. "As in any jungle, the animals will use all the
means at their disposal, all their teeth and claws that are
permitted by the ecosystem."

Posner, 73, was appointed as a federal appeals court judge by
President Ronald Reagan in 1981 and has written dozens of books,
including one about economics and intellectual property law.

Posner, who teaches at the University of Chicago, effectively ended
Apple's lawsuit against Google Inc's Motorola Mobility unit last month. He canceled
a closely anticipated trial between the two and rejected the
iPhone maker's request for an injunction
barring the sale of Motorola products using Apple's patented
technology.

Apple is in a pitched battle with its competitors over patents,
as technology companies joust globally for consumers in the
fast-growing markets for smartphones and tablet computers.

Posner said some industries, like pharmaceuticals, had a better
claim to intellectual property protection because of the enormous
investment it takes to create a successful drug.

Advances in software and other industries cost much less, he
said, and the companies benefit tremendously from being first in
the market with gadgets - a benefit they would still get if there
were no software patents.

"It's not clear that we really need patents in most industries,"
he said.

Also, devices like smartphones have thousands of component
features, and they all receive legal protection.

"You just have this proliferation of patents," Posner said. "It's
a problem."

Generation Smartphone

The Apple/Motorola case did not land in front of Posner by
accident. He volunteered to oversee it.

Federal appellate judges occasionally offer to preside over
district court cases. Posner had alerted the district judges of
his interest in patents, so after part of the smartphone battle
landed in Wisconsin federal court, the judge there transferred
the case to him.

When Posner began working on the smartphone case, he told the
litigants he was "really neutral" because he used a court-issued
BlackBerry made by Research In Motion Ltd. He soon accepted
an upgrade to an iPhone, but only uses it to check email and call
his wife, he said.

"I'm not actually that interested in becoming part of the
smartphone generation," he said.

Posner's corner office is filled with the requisite library of
law tomes, and a row of books he wrote sits alongside his family
photographs. He also has a signed photograph from the late
Supreme Court Justice William J. Brennan Jr., for whom he clerked
in the early 1960s.

Judges rarely speak openly to the press, but Posner is outspoken
on a range of topics. Last week in online magazine Slate, he penned a withering critique of U.S.
Supreme Court Justice Antonin Scalia's recent dissent in the
Arizona immigration case.

Motorola sued Apple in October 2010, a move that was widely seen
as a pre-emptive strike. Apple filed its own claims against
Motorola the same month.

In canceling the trial, Posner said an injunction barring the
sale of Motorola phones would harm consumers. He also rejected
the idea of trying to ban an entire phone based on patents that
cover individual features like the smooth operation of streaming
video.

Apple's patent, Posner wrote in his June 22 order, "is not a
claim to a monopoly of streaming video!"

Not all judges in the patent wars share Posner's skepticism of
injunctions. U.S. District Judge Lucy Koh in San Jose,
California, granted Apple two critical pretrial injunctions
against Samsung Electronics Co Ltdlast week: one
against the Galaxy Tab 10.1, and the other against the
Galaxy Nexus phone.

In Friday's 101-page ruling barring the Galaxy Nexus, Koh cited
the harms to Apple due to competition from phones that infringe
its patent on the Siri search feature. Samsung is appealing both
injunctions.

Posner said he had not read Koh's orders.

In his own ruling, Posner also barred Motorola from seeking an
injunction against the iPhone because the company had pledged to
license its patent on fair and reasonable terms to other
companies - in exchange for having the technology adopted as an
industry standard.

Posner's idea of examining whether industries like software
should receive patent protection is a mainstream one, especially
in the computer industry, said John Allison, a professor at
University of Texas at Austin who studies intellectual property
rights.

However, recent patent law reforms passed by the U.S. Congress
did not directly address the issue, and Allison said classifying
industries for the purposes of intellectual property protection -
as Posner suggests - was "completely impractical" because
talented lawyers could game the system.

When it comes to the smartphone litigation wars, Posner said tech
companies should not be blamed for jumping into court since they
are merely taking the opportunities that the legal system offers.

Given the large cash reserves in Silicon Valley, high legal fees
are not a deterrent. Apple, for instance, had $110 billion in
cash and securities as of March 31.

"It's a small expense for them," Posner said.

Posner said he had been looking forward to presiding over a trial
between Motorola and Apple, but had no other choice than to toss
the case.